Personal Injury Claims: Investigation and Preparation From Inception to Trial

Preface
When participating in a Q&A forum relating to my book Wrongful Death Claims: A Practical Guide, published by LexisNexis in December 2020, in answer to the question as to what I intended to do now that the former textbook had been published, I responded by saying, probably a second edition at some stage to accommodate developments in the law. I went on to say that I had also thought about writing a similar work addressing the practicalities of personal injury litigation. I added, perhaps flippantly, that I had reservations as to embarking on the exercise of writing a book in this area as personal injury litigation is generally far less complex, more settled and without the contentious issues that plague fatality litigation, where I had seen a very real need for a textbook providing a comprehensive commentary that would be invaluable to all practitioners, regardless of experience, including the judiciary. However, I went on to comment that in personal injury litigation there are still many traps and pitfalls, and practitioners would undoubtedly benefit from the practical guidance a comprehensive book would provide.

My comment that personal injury litigation is generally less complex, more settled and without contentious issues was perhaps the understatement of the year. Prior to retirement in 2019 I had, over a period in excess of 40 years, practised almost exclusively in personal injury and wrongful death litigation – initially as a barrister and solicitor within our fused profession in Tasmania and exclusively as a barrister from 2005. I guess that my rather glib comments derived from my experience, whereby a great deal of the theory and its application in a practical setting had become second nature – much like a specialist medical practitioner would likely reply to the question: How difficult is your work? with the response: Well, it’s what I do. However, if the same specialist set to writing a textbook on the theory underlying the work undertaken on a day-to-day basis, I expect he or she would readily come to the conclusion that: Yes, this is actually very complex, particularly when it comes to imparting an understanding of the theory and providing guidance as to the application of the theory in a practical setting.

In writing this book, I found that martialling the theory into a comprehensive and concise work, and providing guidance as to its practical application, involves far more complexity than I had anticipated when embarking on the project. I came to realise that personal injury litigation is in fact more complex than my flippant comments referred to in the first paragraph would suggest, particularly so, given changes made to the underlying theory brought about by the civil liability and other legislation enacted in most jurisdictions which have brought about significant change.

One area where practitioners and their clients (claimants) have sometimes come to grief is with regard to establishing causation. It may be that having investigated a potential claim, the practitioner is satisfied that there was a foreseeable risk of injury, the existence of a duty of care owed by the intended defendant to the claimant, a clear breach of the duty of care, and in the end result, an injury; and in those circumstances, the practitioner confidently assumes that there is a causal nexus between the breach and the damage sustained by the claimant: causation. However, there have been cases where the first three constituent elements of the tort have been satisfied, but causation has not, with the result that the claim fails. Clearly, in those cases insufficient consideration has been given to causation. This is not intended as a criticism of practitioners. Courts have also made the same error. For example, the High Court has found it necessary to even correct the New South Wales Court of Appeal on this very issue on at least one occasion mentioned in this work. I refer to my commentary in Chapter 3 at 3.3.3, 3.3.3.1 and particularly at 3.3.3.2 and one of the cases there discussed: Commissioner of Main Roads v Jones.1

With regard to medical negligence cases I also refer to my commentary in Chapter 3 at 3.3.3.3, and the discussion there relating to Tabet v Gett,2 a case where breach was established, but causation was held to be absent, because the trial judge had assessed at only 40per cent the chance of a better outcome and on appeal the New South Wales Court of Appeal concluded that the evidence only supported a 15per cent chance of a better outcome. In other words, the evidence did not establish that the delay in diagnosis and treatment had made a difference on the balance of probabilities, rather, that the delay in diagnosis and treatment only deprived the plaintiff of the chance of a better outcome assessed by the trial judge at 40per cent and by the Court of Appeal at 15per cent. The High Court held that in order for the plaintiff to have succeeded it was necessary to establish causation on the balance of probabilities – that is, the chance of a better outcome assessed at 51per cent or better.

Another area of complexity and contention relates to an issue arising under the civil liability legislation enacted in most jurisdictions in the endeavour to expand the principle and application of the defence of volenti non fit injuria – voluntary assumption of risk – and how the courts should interpret the words ‘obvious risk’, particularly in the context of ‘dangerous recreational activity’. I refer to my commentary in Chapter 4 at 4.4.2.1, 4.4.2.2 and 4.4.2.2.1–4.4.2.2.5. At 4.4.2.2.5 I advocate for judicial reform, as it seems to me that the New South Wales Court of Appeal has perhaps gone too far in facilitating the expansion and application of the defence of voluntary assumption of risk in cases where possibly injustice may have been the result. Reform may be forthcoming, as this very issue has been the subject of a grant of special leave by the High Court in April 2021 (refer to the final paragraph in 4.4.2.2.5 with respect to Tapp v Australian Bushmen’s Campdraft and Rodeo Association Limited).3

Of interest to practitioners in New South Wales will be my commentary relating to the defence of intoxication pursuant to the provisions of the Civil Liability Act 2002 (NSW) discussed in Chapter 4 at 4.7.2.1, particularly with regard to s 50(2), where I conclude that the wording seems nonsensical and incapable of any definitive application in any given circumstances. Thus, it is not clear when and how the provision can be properly engaged.

The underlying reasons why the potential future receipt of Centrelink benefits should be ignored when assessing future loss of earning capacity are explored and explained in comprehensive detail in Chapter 9 at 9.2.18.8, lest practitioners acting for defendants and courts be tempted to conclude that such benefits should be brought to account in arriving at an appropriate discount for contingencies. The commentary details the arguments I presented to the Full Court of the Supreme Court of Tasmania in Partridge v Hobart City Council.4 These arguments led to necessary reform in Tasmania, where for over twenty years plaintiffs had been deprived of their full entitlement to damages, due to a consistent failure by the courts to understand the practical application of the recovery and preclusion provisions detailed in the Social Security Act 1991 (Cth).

Legislative imposition on discounting for present payment when assessing services claims pursuant to Griffiths v Kerkemeyer5 is also an area where I have suggested that it is arguable the legislation in some jurisdictions will not apply, so that the discount rate of 3per cent for present payment pursuant to Todorovic v Waller6 should be considered the correct discount rate: refer to my general commentary in Chapter 10 at 10.2.8, and in respect of New South Wales at 10.2.8.1, Victoria at 10.2.8.4, Western Australia at 10.2.8.5 and the Northern Territory at 10.2.8.8. If I am correct, this will have significant ramifications with regard to the assessment of future services claims, particularly in cases where a claimant is significantly impaired and the need for services at a relatively high level is demonstrated, as for example in cases of catastrophic injury.

Finally, discounting future claims for loss of earning capacity and other future claims to take account of contingencies should move away from the arbitrary usual or standardised discount of 15per cent that is often applied by courts in all jurisdictions except Western Australia given the commentary referred to in Chapter 13 at 13.5.

The above are some of the more obvious areas of contention noted during the course of preparation of the book that come to mind. Other areas may be commented upon throughout the text.

Leaving aside complexity and contention, I have endeavoured to present this work by addressing comprehensively and concisely the theory underlying all aspects of personal injury litigation, with particular emphasis on application of the theory in a practical setting.

Thus, Chapter 2 addresses the investigations that I consider should be undertaken from inception and progressing through to the point where the injury related medical condition has stabilised, at least for the medium term.

Chapter 3 addresses the legal aspects relative to establishing liability. These issues should obviously be addressed and considered before advice is provided to a claimant to commence proceedings. The prospects of success must necessarily underlie the advice provided and the decision made to embark upon litigation.
Chapter 4 then addresses the potential defences available to the opponent. The practitioner acting for the claimant should clearly have regard to all potential defences that may be raised. Equally, practitioners acting for a defendant may find my commentary regarding each defence of assistance in particular cases.

I have then included in Chapter 5 a useful digest of cases addressing various factual scenarios relevant to liability and defences, together with commentary on most of those areas which I think will be of assistance to practitioners dealing with particular cases that may have some similarities from a factual perspective.

Chapter 6 provides useful information as to my understanding of the often diagnosed condition chronic pain, which can be misunderstood – and on occasion vilified by opposing practitioners, as indicative of exaggeration and malingering – simply because medical science is not sufficiently advanced to be able to locate with current medical technology any actual pathology causing the condition. I have explained the difference between acute pain and chronic pain and have attempted to explain the underlying cause of chronic pain and its incidence, in the absence of identifiable pathology, after the natural healing process has concluded.

I then proceed in Chapters 7 – 11 to provide a detailed commentary on the components of a damages claim that may be available to claimants in particular cases and the relevant legal principles to apply in quantifying and assessing those components, including commentary on statutory modifications brought about by the civil liability legislation (and other legislation) enacted in most jurisdictions.

With all the information provided in the preceding chapters, and assuming that the injury has stabilised for the medium term and that investigations recommended in Chapter 2 have been completed, the stage has been reached where the practitioner representing the claimant can undertake the task of preparing particulars of claim. The guidance provided in Chapter 12 and the Appendices referred to therein will hopefully assist. Once this task has been attended to, the practitioner can then provide the claimant with advice as to a reasonable expectation with regard to the outcome of the proceedings, both with regard to liability and damages. Relevant considerations regarding assessing damages have been addressed in Chapter 13. Chapter 14 then addresses the preparation of the advice (opinion) to be provided to the claimant, so as to ensure that he or she will be in a position to make informed decisions with regard to settlement negotiations. Failing settlement, Chapter 14 also addresses trial preparation and presentation.

Finally, Chapter 15 addresses the principles relevant to appeals with regard to both apportionment of liability and quantum of damages.

As this book focuses not only on the theory underlying personal injury litigation but, also application of the theory in a practical setting, the final segment of the work is the Appendices which include working precedents for documents prepared in actual cases: Appendices B–O.

The entirety of this work draws on my experience over a period exceeding 40 years. Whenever I prepared a document or an opinion or read or noted a reference to a previously decided case, that I thought would be useful at a later time, I recorded this electronically in a legal digest. By the time of my retirement from practice at the end of June 2019 the digest contained almost 600 pages. Much of the theory detailed in this work has been drawn from this digest, supplemented of course by review of many cases referred to throughout.

I hope my commentary will be useful to practitioners, particularly more junior practitioners and those with limited experience in the personal injury field. I also hope that more experienced practitioners may benefit from my commentary especially in areas of complexity and contention. I have endeavoured to provide a concise reference to all issues which, from my experience over 40 years, often arise in personal injury litigation, supported by reference to decided cases and relevant legislation. At times, where appropriate, I have also ventured upon a critical analysis of areas that may be contentious in particular cases.

Craig Hobbs
Former Barrister
Wrongful Death Claims: A Practical Guide

Expanded Table of Contents